A Tale of Two Trials

Zimmerman acquitted by a jury—convicted by the media.

Charlotte Allen

July 29, 2013, Vol. 18, No. 43

The trial of George Zimmerman over the shooting death of 17-year-old Trayvon Martin was actually two trials in one.

There was the trial that took place inside a courtroom in Sanford, Florida, which ended on July 13, when a jury acquitted Zimmerman on charges of second-degree murder and manslaughter. The six jurors apparently concluded that the prosecution had failed to prove beyond a reasonable doubt that the then-28-year-old Zimmerman hadn’t killed Martin in self-defense on the rainy night of February 26, 2012, in a deadly scuffle on the grounds of a townhouse complex where Zimmerman and Martin’s father’s girlfriend were renters and Zimmerman was the neighborhood watch captain. And then there was the other trial, which took place in newspapers, on television networks, and in fiery pronunciamentos from reporters, pundits, editorialists, bloggers, tweeters, celebrities, self-appointed black spokesmen, guilt-soaked white liberals, disgruntled members of the prosecution team, and even the Obama administration, from Attorney General Eric Holder’s Justice Department to the president himself.

That latter trial began well before Zimmerman turned himself in to the police on April 11, 2012, and will seemingly continue without recess either until the zombie apocalypse, or until Zimmerman is “taken out by a nutball vigilante like him,” as a friend of a Facebook friend phrased it a couple of hours after the acquittal. The issues in that second trial—the shadow trial, as it were—are completely different from those raised in the courtroom itself: racism, gun control, more racism, white supremacy, white privilege, Florida’s “stand your ground” law of self-defense—oh, and still more racism.

The facts presented in the two trials were, and are, completely different as well. The late New York senator Daniel Patrick Moynihan famously declared, “Everyone is entitled to his own opinion, but not his own facts.” Not so. The Zimmerman shadow trial in the media has featured its very own facts, which bear little resemblance to those entered into evidence in the Sanford courtroom.

The factual disparities extended all the way down to the micro level. An article for the online magazine Salon, filed by Paul Campos, a University of Colorado-Boulder law professor, within hours of Zimmerman’s acquittal, described the “scary” (Campos’s word) Zimmerman as “a 230-pound 30-year-old”—a description that added a full 45 pounds to the 185 pounds listed on the police report compiled on the night of the shooting, plus two extra years to his age. (Zimmerman did gain considerable weight while awaiting trial.) Martin, by contrast, got 10 pounds subtracted from his actual weight (150 in Campos-world versus 160 in the real world). Campos never did get around to stating their respective heights: Martin was 6′0″, Zimmerman 5′8″. Campos repeatedly referred to Martin as a “boy” and a “kid,” which was technically true because he was a year shy of legal adulthood. This jibed with a general tendency on the part of the media to call Martin a “child,” as in this CNN commentary on July 10 by Roxanne Jones: “[W]hen an unarmed child is confronted and gunned down in the street by a grown man who’s trained to kill, that’s murder.” Media photos of Martin almost invariably showed a cherubic photo that had been snapped years before—in contrast to the photos from Martin’s cell phone released by Zimmerman’s lawyers in which a muscular Martin sported a gold teeth-grill, tattoos, and a faint mustache.

That was the small stuff. Here is a list of some of the more significant discrepancies between the facts of the Zimmerman case as they emerged in the Bizarro World of outside-the-courtroom commentary and the facts that the jury actually heard:

Zimmerman “stalked” Martin. This was a favorite media meme, typified in a CNN column by Miller Francis: “Was . . . Martin justified in . . . defending himself when this stranger, an apparent stalker, approached him in a threatening manner?” The trial evidence showed merely that Zimmerman briefly ran after Martin while making a 911 call to the police about a suspicious person he saw wandering between some houses in the complex, which had been hit by a wave of burglaries, at least two involving young black men. According to statements Zimmerman made to the police after the shooting, Martin then approached him as he was returning to his car. It should be noted that Zimmerman was legally carrying, under a concealed-weapon permit, the gun with which he shot Martin; a neighbor interviewed by Reuters in 2012 said he had bought it to fight off a periodically loose pit bull that was terrorizing his wife.

Zimmerman was racially profiling Martin. The media picked up this allegation from the prosecution’s affidavit of probable cause filed on April 12, 2012. “It cannot reasonably be disputed that the incident that left Mr. Martin dead began with ugly racial profiling,” NBC News legal analyst Lisa Bloom wrote for the New York Times on July 15. NBC had creatively edited the tape of Zimmerman’s 911 call to make him look fixated on race, leaving out the part where the dispatcher asked for a description. Judge Debra Nelson, who presided over the trial and who was not known for her sympathy for the defense, pointedly barred the use of the term “racial profiling” during opening statements or at any other time. Racial profiling would have been a tough charge in any event to sustain against Zimmerman, who was half-Hispanic, with a Peruvian mother and a black great-grandfather. (The New York Times’s response to the revelation that Zimmerman wasn’t quite the Aryan that the press had initially characterized him as was to dub Zimmerman a “white Hispanic.” Campos of Salon called him “a more or less white man.”)

Zimmerman disobeyed a police dispatcher’s order to stay inside his car and instead embarked on a vigilante quest for Martin. That’s what nearly every newspaper reporter and TV network in America said during the year or so leading up to the trial. “Wannabe cop” was a favorite epithet. As the recording of Zimmerman’s conversation with the dispatcher, Sean Noffke (together with Noffke’s testimony at trial), revealed, Noffke had merely said, “We don’t need you to do that,” when Zimmerman was already out of his car. And judging from the rhythm of Zimmerman’s breathing on the recording, he stopped pursuing Martin a mere 13 seconds after Noffke issued his advice.

Zimmerman provoked the conflict with Martin by confronting him about what he was doing on the premises, effectively nullifying his claim of self-defense. Andrew Reinbach, a blogger for the Huffington Post, wrote on July 16: “It can certainly be argued . . . that Mr. Zimmerman provoked the attack that prompted him to use deadly force against an unarmed teenager who bested him in a fistfight.” (The “fistfight,” according to Zimmerman’s statements to the police, corroborated by the testimony of witnesses at the trial and gunpowder evidence on Martin’s shirt, consisted of Martin’s sucker-punching Zimmerman to the ground and pounding his head into a concrete sidewalk while on top of him.) That Zimmerman started it was one of the prosecution’s theories, but Judge Nelson, rejecting the idea that Zimmerman’s questioning of Martin could amount to provocation, refused to allow a jury instruction on provocation—so it was never an issue in the courtroom trial.

Florida’s generous “stand your ground” law allowed Zimmerman to prevail on a claim of self-defense that would not be permitted in other states. Florida—like the majority of other U.S jurisdictions—does not require someone to retreat if reasonably possible rather than use deadly force against a real or reasonably perceived aggressor who threatens death or grave bodily injury. Florida also—unlike the majority of other U.S. jurisdictions—allows people to use deadly force merely to defend property under some circumstances, such as a home or car invasion. But as Stephen P. Garvey, a professor of criminal law at Cornell University, explained to me in a phone interview, the “stand your ground” doctrine under any interpretation simply wasn’t an issue in the trial, because Zimmerman didn’t draw his gun until it was impossible for him to retreat. As Garvey says, “This is a very bad case on which to base your thoughts about important issues such as racial profiling or the duty to retreat.”

The problem was that those issues, plus others, such as gun control, which Obama quickly interjected into the case as one of his pet causes in a July 14 statement, weren’t the ones put before the jury. The jurors had to deliberate whether the prosecution could prove beyond a reasonable doubt that George Zimmerman hadn’t acted in self-defense. The bloggers, the tweeters, the columnists, the politicians, and even the supposedly objective news reporters weren’t nearly as interested in that trial as in the parallel trial, which is still going on. In this latter trial, white racism is the defendant (Zimmerman is just a symbol), black victimization is the crime, and the verdict is always guilty.

The narrative is that Martin was killed for “walking while black,” as Lisa Bloom put it. New York Times reporter Lizette Alvarez expressed dismay in a front-page story on July 7 that in Nelson’s courtroom “race lingers awkwardly on the sidelines, scarcely mentioned.” Washington Post columnist Eugene Robinson declared outright on July 15 that the Zimmerman trial was actually about the fact that “[o]ur society considers young black men to be dangerous, expendable, guilty until proven innocent.” Robinson called Martin’s punch, which apparently broke Zimmerman’s nose, “adolescent bravura.” Tim Wise, a professional in the “white privilege” and “white supremacy” industries, wrote a 2,800-word screed in the Huffington Post condemning Zimmerman as a “racist” simply for noticing Trayvon Martin’s suspicious behavior on the townhouse grounds. “[A]ny white person who wants to kill a black person can follow one, confront them, maybe even provoke them, and as soon as that black person perhaps takes a swing at them, or lunges at them, the white pursuer can pull their weapon, fire, and reasonably assume that they will get away with the act,” Wise wrote.

The Justice Department is currently investigating whether to prosecute Zimmerman for federal civil-rights violations, even though the FBI last year investigated him for racism and found none. Florida special prosecutor Angela Corey continued to call Zimmerman a “murderer” even after his acquittal, and Bernardo de la Rionda, the prosecutor who actually tried the case, implied that Zimmerman was a coward for having invoked his Fifth Amendment right to remain silent throughout his trial; de la Rionda said he had “prayed” for Zimmerman to have the “courage” to take the stand. But all those people have no interest in the real trial of George Zimmerman that took place inside a courtroom. They care only about the other trial, a show trial that will never end.

Charlotte Allen, a frequent contributor to The Weekly Standard, last wrote on Keynes and Hayek.